Omesa v Nyakwara & another
The bottom line
#A Kenyan land buyer who skipped a proper title search lost her appeal because she had seen the power lines herself before purchasing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant proved breach of contract on a balance of probabilities
No - the Appellant failed to prove breach; the wayleave was only 30 metres wide and she had accepted the property
The Appellant's cause of action was breach of contract. She admitted visiting the property before purchase and seeing power cables, did not personally conduct a search, misplaced the search certificate, and produced no evidence that the entire property was acquired by KPLC. The wayleave was only 30 metres wide and registered, so the property remained usable. The trial magistrate's finding was correct.
Whether the Appellant was an innocent purchaser for value without notice
No - she failed to demonstrate due diligence and had actual notice of the power lines
Relying on Estate of Sonria Ltd v Samuel Kamau Macharia, the court held the Appellant had to show due diligence including a registry search. She did not search personally, misplaced the search certificate, and admitted visiting the property and seeing the power lines before purchase. Section 29 of the Land Registration Act presumes notice of overriding interests.
Whether the trial magistrate erred in allowing the Respondents' counterclaim
No - the Appellant admitted purchasing only 1 ¼ acres while the parcel registered in her name measured approximately 1.977 acres
The search certificate showed the parcel registered in the Appellant's name exceeded the portion purchased by approximately 0.726 acres. The Appellant conceded in cross-examination that any excess land could revert to the Respondents. The trial magistrate was therefore entitled to order rectification of the register.
Legal principles established
#- The burden of proof on a plaintiff remains the same throughout the case and is not lessened where the case is heard by formal proof
- A purchaser claiming to be an innocent purchaser for value without notice must demonstrate due diligence, including a search of the register
- Every proprietor acquiring land is deemed to have notice of every entry in the register subsisting at the time of acquisition
Court orders
#- 1.Appeal dismissed with costs to the Respondents
- 2.Judgment of the trial magistrate in Keroka PMELC Case No. 2 of 2019 upheld
- On appeal from
- Chief Magistrate's Court (Keroka)
- Keroka PMELC Case No. 2 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court land and environment matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omesa v Nyakwara & another", Case Analysis (2022). Environment and Land Appeal 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14614/eng@2022-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.